Beneficial Approach to PIAWE

In Dick’s Diesel Pty Limited v Caddaye [2015] NSWWCC PD 68, Acting President Roche was required to consider the application of section 44C(2) of the Workers Compensation Act 1987 in circumstances where a worker had only been employed for a brief period of approximately two weeks, and there was evidence that his job would have been terminated approximately two weeks after the date of injury for operational reasons even if the injury had not occurred.

Section 44C (2) provides:-  

“(2)    If a worker has been continuously employed by the same employer for less than 4 weeks before the injury, pre-injury average weekly earnings, in relation to that worker, may be calculated having regard to:  

(a)       the average of the worker’s ordinary earnings that the worker could reasonably have been expected to have earned in that employment, but for the injury, during the period of 52 weeks after the injury expressed as a weekly sum, and

(b)       any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable)”.

The Appellant argued that because the worker had been employed for less than four weeks, and because his employment would have been terminated approximately two weeks following the injury, the amount he “could reasonably have expected to have earned” during the period of 52 weeks after the injury was either nil or minimal.   

The Acting President disagreed with this approach.  He relied on a decision of Lachlan v H P Mercantile Pty Limited [2015] NSWCA 130 where the Court of Appeal stated:-  

“…where a discretion is conferred on the Court in general terms, the Court is required to exercise that discretion so as to “prevent injustice” or in accordance with the Judge’s view of the justness of the case”.  

The Acting President considered that the approach contended by the Appellant would result in the worker obtaining minimal weekly compensation even if he succeeded on all issues remaining in dispute.  He concluded:-  

“…assuming that Mr Caddaye’s claim is otherwise successful, that would be a gross injustice.  In beneficial legislation, such as the workers’ compensation legislation, such a result should not be allowed if an alternative approach is reasonably available on a fair reading of the legislation.  An alternative approach is reasonably available in the present case.  Namely, the usual approach to determining pre-injury average weekly earnings in ss. 44C(1), 44D and 44E”.

The Acting President ultimately found that the correct approach would be to assess pre-injury average weekly earnings by reference to actual earnings during the brief two week period of employment prior to the injury.